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NEWS IN CONTEXT

Bush administration publishes flawed "refusal right" rule

December 19, 2008

On December 19, the Bush administration published a finalized version of a new federal regulation vastly expanding the rights of individuals and institutions to refuse to provide or assist in providing health care services that offend their religious beliefs or moral convictions. The final regulation—which goes into effect in 30 days—is almost identical to the version initially proposed on August 26, despite the administration having received more than 200,000 letters in opposition to the regulation, including from mainstream medical associations; associations of state health officials; a bipartisan group of state attorneys general, numerous advocacy groups dedicated to civil, human, religious and reproductive rights, and even the administration’s own Equal Employment Opportunity Commission (EEOC).

In response to public outcries, the administration continues to insist that the regulation merely clarifies, raises awareness of and requires certification of compliance with three long-standing federal "conscience laws" that apply to some or all recipients of funding from the U.S. Department of Health and Human Services (DHHS). Because these laws have been on the books for years—one since 1973—the administration argues that the regulation will not have any disruptive effects. Yet, it ignores or dismisses comments arguing that in "clarifying" these laws, the administration is in truth redefining key terms and expanding the laws’ reach.

One major concern is that the regulation may allow health care institutions to refuse to provide most modern forms of contraception, thereby undermining dozens of state laws enacted over the past decade that ensure insurance coverage for contraceptive care and access to contraceptive services in emergency rooms and at pharmacies. A draft of the regulation that became public in July listed those laws as among the purported problems to be solved by the regulation and addressed those problems by defining abortion so broadly as to encompass the birth control pill and other major contraceptive methods. While this definition is in line with the views of some antiabortion activists and policymakers it contradicts the consensus of the medical community and a long line of existing federal rules and regulations. The final rule does not include any definition of abortion; instead, it leaves the matter unsettled, describing the issue as "highly controversial and strongly debated" and implying that states could be penalized if they enforced their own laws in ways that DHHS sees as "inappropriate."

A second key problem is that the regulation, for the first time, interprets health care providers’ federal refusal rights as being so broad as to include the provision of information on topics and treatments that they find objectionable—not only in the field of reproductive health but for any health service, from vaccination to blood transfusion to end-of-life pain management. In responding to these concerns, the administration declined even to require providers to notify their patients or their employers about their objections. This seriously undermines the traditional ethical and legal obligation to present patients with complete information on all their medical options, so as to allow them to provide informed consent.

In addition, the final regulation includes expansive definitions of which health care workers are covered. The result is that laws originally designed to apply to health care professionals directly involved with a procedure (i.g., doctors and nurses) would now allow refusals by staff members performing such tasks as scheduling appointments, completing and filing insurance forms, or cleaning medical facilities. Currently, claims of religious discrimination in the workplace—health care–related or otherwise—are governed by an extensive body of laws, regulations and court precedent that balance the religious rights of workers with the practical needs of employers, including their ability to provide needed care to their clients. In responding to comments by the EEOC and outside groups that the regulation would upset this careful balance, the administration claims that Congress never wanted this balance to apply in the field of health care—despite decades of interpretation and enforcement to the contrary.

President-elect Obama is on record as opposing this regulation, and his transition team—as well as members of Congress—are in the process of weighing their options. The discussions are reportedly focusing on when and how to overturn the regulation, not about whether to do so. Reproductive health advocates have asked for the new administration to suspend the regulation immediately upon taking office and to then repeal it through the standard rulemaking process.